am in some doubt as to the proper terms to be employed. I have just
made use of the word "election," but cannot let it stand without some
qualification. It was not an election in the strict sense of the word
as we now understand it, but it was as near an approach to a popular
choice as was possible in the age in which it existed. The citizens of
a municipality did not nominate and elect by their votes a popular
magistrate, as some writers would have us believe; for such a
proceeding would have been an anomaly in the eighth century under the
rule of a Frankish emperor. But the people had a voice, and from the
frequent mention of their intervention it would seem an important
voice, in the selection of those who were to be their judges, and who
were to assist in representing them in the royal assembly. The
original appointments were made by some higher power, in most cases
the _missi regii_, the direct representatives of the king; but these
were made not arbitrarily, but always "cum totius populi consensu."
This was the important point; it was so far a popular office that the
free consent of the people was always necessary to make valid the
appointment of any incumbent. According to the ideas and customs of
the eighth century, such a method of procedure would represent a
fairly popular election; for we know well that in the times of the
greatest freedom, the Teutonic idea of a popular vote never went
beyond the mere expression of assent or dissent by the assembled
freemen. The initiative was always left to the king or chief who
conducted the meeting, just as much as it was in the ancient assembly
held on the classic plains of Troy. In a capitulary[77] of Charlemagne
of the year 809 it is decreed: "ut Scabini boni et veraces cum Comite
et populo elegantur et constituantur": and more specific directions
are given by Lothar I. in the year 873, in case of a _scabinus_ found
to be an unjust judge. He says:[78] "ut Missi Nostri ubicumque malos
scabinos invenerint ejiciant, et totius populi consensu in loco eorum
bonos eligant." From this latter example we see that the _missi_ had
the power of dismissal "for cause," as well as of nomination. In fact,
the king and his ministers, in the interests of impartial justice,
kept constant watch on the acts and judgments of the _scabini_, and a
law of Lothar I. tells us that "quicumque de Scabinis deprehensus
fuerit propter munera, aut propter amicitam injuste judicare" should
be sent up to the king to render an account of the manner in which he
had fulfilled the duties of his office.
Such then were the duties, the privileges and the restrictions of the
first magistrate to whom we could venture to ascribe any of the
attributes of a popular judge: a representative of the people at the
assembly of their ruler; a judge of their suits and of their misdoings
at home, and a check on the arbitrary power of their lord and feudal
superior,--we can readily appreciate that the existence of such an
officer within the city must have exercised some influence in giving
to its inhabitants a greater sense of security, and consequently of
importance, even if we cannot claim that in the earliest stages of
municipal development it gave birth to any definite ideas of personal
freedom or of municipal independence. But it can easily be seen that
it formed another and an important factor in that idea whose progress
we wish to trace, of a slowly growing feeling of individuality in the
city as such, the municipal unit as conceived apart from the still
legally recognized unit, the entire _civitas_. We have seen the count
the representative of this idea as far as its actual connection with
the constitution of the state was concerned, but it was the _scabinus_
who was to represent it to the consciousness of the people, and to
assist them in rediscovering the lost conception of a municipal unity.
It would be incomplete to conclude this account of the various
officers of government, without some mention of the position held by
the bishops at this period. As it has been our duty throughout this
paper to study the municipalities of Italy as only preparing to assume
a position of individuality eventually leading to independence, so it
is with regard to the bishops. While their social influence, as
pointed out in the first part of this paper, was always notable, their
political power, which formed one of the important steps in the
progress of the communes towards a separate existence, has its birth
at a time which is beyond the limits of this investigation. Not until
the overthrow of the Carlovingian dynasty left Italy the prey of
contending factions, and the crown passing quickly from hand to hand
made each applicant anxious to gain the support of the more prominent
electors, did the bishops obtain that legally constituted political
power which, by breaking up and in many cases destroying the rule of
the counts and great nobles in the cities, was the means of bridging
over the wide gulf which lay between the idea of a district under the
almost absolute rule of a great lord, and a civic autonomy governed by
its own independent citizens. Even, however, if we are not yet to
portray the bishop in a position of high political importance, we may
briefly consider his social power and influence, and, as we have done
with the cities themselves, indicate the steps by which he was enabled
ultimately to gain such an exalted position.
The relations of the bishop to the inhabitants of the cities during
the period we are considering were pretty nearly such as described in
the first part of this paper. He stood forth as protector of the weak
and the oppressed; as mediator between an unfortunate prisoner and an
unjust judge who was seeking his private interest rather than
following the spirit of impartial justice; or between a downtrodden
vassal and the almost unlimited power of his feudal superior. He
lessened the severity of harsh judgments, he protested the imposition
of unjust fines and penalties. In very many cases he was even
appointed by the king or his representatives as co-judge to assist the
_judex_ or the _missus_ in hearing cases where oppression or injustice
was to be feared. But it is important for us to avoid confusing this
kind of jurisdiction with that which he enjoyed in the century after
he had attained the power and the office of count, and had combined
the religious functions of head of the diocese with the secular ones
of political ruler of the city. Any judicial authority possessed by
the bishop at this earlier period was not in virtue of any political
position he himself held, but came to him entirely in what might be
called an extraordinary manner, that is, by delegation from the king,
for definite specified occasions. As an example of this extraordinary
delegated jurisdiction, I will refer to a document in the Archivio of
the Canons of Arezzo[79] of the year 833, relating to the judgment of
a dispute between "Petrum Episcopum Arretinum et Vigilium Abatem
Monasterii Sancti Antemi," situated in the territory of Chiusi, over a
privilege ceded to that monastery by Lewis the Pious in 813.[80] The
bishop of Arezzo gained a favorable decision from a court constituted
of some _judices_, _missi_ of the emperor, and of the bishops of
Florence, Volterra and Siena, Agiprandus, Petrus and Anastasius.
According to the terms of the document with regard to the composition
of this court, the bishops sitting in it were "directi a Hlotario
magno Imperatore"; and their powers are several times referred to as
being "juxta jussionem et Indiculum Domni Imperatoris." Here, as in
all other similar cases, we see plainly that there is no indication of
any purely personal jurisdiction.
That the influence of the bishop in affairs of state at this period
was only of an individual, extra-official character can be seen also
from the fact that the king considered the bishops themselves to be
under his judicial jurisdiction in all secular matters, just as the
lesser clergy came under the jurisdiction of the _judices_:[81] and
further, that after the election to a church, the decision of the
_judex_ must confirm the choice of the community in order to render it
valid.[82] All disputes also between bishops and their clergy, between
members of the body of clergy, and between these and members of the
laity, were settled by the royal authority;[83] and what is most
significant, there was a universal and freely used right of appeal for
the clergy or laity from the decision of a bishop to the person of the
king, who seems to have exhibited no hesitation in modifying or
reversing sentences, even in matters relating to purely clerical
discipline.[84]
Even in the time of the Franks, when the consideration shown to the
church and its representatives was much greater than under any of the
Lombard kings, we find Charlemagne,[85] on suspicion of infidelity to
his government, having sent to him and retaining as prisoners the
bishops "Civitatis Pisanae seu Lencanae" and Pottoni, Abbot of the
monastery of Volturno; and Lewis the Pious[86] sends into exile
"Ermoldo Nigello Abatis," and in the year 818 several other bishops,
including Anselmus "Mediolanensis Archiepiscopus," "Wolfoldus
Cremonensis" and "Theodolphus Amelianensis."[87] None of these
restrictions and limitations, however, although they arose chiefly
from the strong opposition always existing between the local temporal
rulers of the people and their spiritual rulers, could hinder the
bishops from occupying that important position of mediators and of
protectors of the people which we have ascribed to them.
Turning now to a consideration of the earliest steps which may be said
to have cleared the way for the political power of the bishops, we are
met by a subject which, though of great interest in itself, is not
sufficiently a part of this investigation for us to do more than
indicate the lines of its progress. This subject is the development of
the practice of giving certain immunities and privileges to churches
and monasteries, adopted by the Frankish kings, faithful sons of the
church, and then followed by all their royal and imperial successors.
In considering the important influence exercised by these immunities
on the development of the espiscopal power and the effects of this on
the growth of the communes, there are two essential facts which we
must always keep prominently in mind. In the first place we must
remember that the granting of immunities was a question of privilege
to particular individuals or ecclesiastical institutions, and not a
universal grant which affected in an equal degree all the dioceses of
the realm. This led to the marked differences in rank and importance
which existed between the various bishoprics, and in the tenth
century, when the temporal power became in many cases an adjunct to
the spiritual, caused some bishops to become powerful temporal
princes, while others, unable to gain this pre-eminence, remained
simply spiritual heads of their respective dioceses. So in the contest
between the counts and the bishops we find the latter only victorious
in certain cases, and consequently having only certain of the cities
under their jurisdiction; a fact which is illustrated as late as the
Peace of Constance, where in the ninth article the cities are still
divided into episcopal and non-episcopal cities.[88] In the second
place we must keep clearly before us an important fact, the truth of
which any chronological account of the development of the principle of
immunity would easily demonstrate, namely, that with the advance of
time and with the growth of that principle, the changes which took
place in the different sorts of immunities were not simply those of
degree, but essentially and principally those of _kind_.
A descendant of Charlemagne may have granted to some monastery or
bishopric a greater alleviation of some of the fiscal burdens borne by
it under his immediate predecessor, but a successor of Berenger when
he granted a _privilegium_ did not simply perform the negative benefit
of alleviating burdens; he endowed the head of the bishopric--probably
in return for some service he had received at his hands or expected to
receive--with the positive benefit of the political headship and
possession of some city or district of a former count. I mean by this
that the earlier immunities--and in these are included all given
during the period we are discussing--were all of them what are termed
simple or ordinary immunities; that is, those which deal with
exemption--whether from burdens for which the receivers would
otherwise be liable, or from jurisdiction to which they would
otherwise have been subjected--of what may properly be called the
private possessions of the churches concerned. They had nothing to do
with the privileges of a later time, by which a power to exact burdens
was granted and a positive jurisdiction over others allowed: that is,
public functions bestowed rather than private rights conceded.
That a distinction of such a character was a difference of kind and
not of degree is so plainly apparent that it is unnecessary to dwell
longer upon it, and it only remains for us to consider briefly the
chronology of some of the changes that took place. If we adhere
strictly to the proper signification of the terms used, the
development can be somewhat succinctly described by the simple
enumeration of the three characteristic features of its progress, viz.
_protection, exemption, privilege_ that is jurisdiction or temporal
power; and the three periods which are covered respectively by the
prominence of these ideas can be roughly stated to be: for the first,
the reigns of Charlemagne and his successors down to the time of
Charles the Bald--including any indication of this idea which we may
find during the reigns of the last rulers of the first Lombard
kingdom; for the second, the reigns of Charles the Bald, Karloman, and
Charles the Fat; and for the third, the full development of the
episcopal power in the tenth century, down to the period of its final
decline, and the rise of actual municipal government within the
communes.
It is doubtful whether immunities of any importance were granted even
by the latest kings of the Lombards, before the invasion of the
Franks. Under the first Lombard monarchy the church held a very
subordinate position with regard to the state, and if privileges were
granted to any of its members, they had attached to them no greater
meaning than the simple extension to them of the _mundibrium_ of the
king, such as was often allowed to private individuals; that is, they
were simply grants of royal protection, and were not similar to the
later grants which included both protection and privilege.[89]
With the advent of Frankish rule under Charlemagne, marked
consideration immediately appears for the church and its
representatives. Not alone is ample protection granted to many of the
churches of the kingdom, but to it is added the important function of
exemption. The greatest evil endured in those days by the
ecclesiastical authorities was exactions levied on their property and
oppression exercised on their dependents by the dukes and counts under
whose jurisdiction lay the temporal possessions of the churches and
monasteries. Consequently the aim of every bishop and of every abbot
was to obtain for the possessions of his diocese or his convent an
exemption more or less complete from the civil administration of the
neighboring secular ruler. For a long time there was no thought in the
mind of the bishop of gaining for himself the functions of temporal
jurisdiction, but simply that the power of the count should be
restrained with regard to church property, that is, that he should not
be able to exercise his judicial control over lands belonging to the
church, except by the express permission, "per licentia data," and
with the concurrence of the bishop himself. This and nothing more is
what is meant by all of the charters of exemption granted by the
Carlovingian rulers, down to the time of Charles the Bald, when, as we
shall presently see, a change was introduced.
It would be useless for me to cite examples of such charters, for
their number is countless, and reference may be made to any of the
great collections of mediaeval documents for confirmation of what has
just been said; for during the reigns of the earlier Carlovingians,
the strong reverence for the church and respect for its officers which
characterized the Frankish nation from the beginning led to the
extension of these privileges to much the greater number of the
churches in the realm. Not all churches enjoyed such grants, and not
all those accorded were of the same liberal character, but the number
given and the amount of liberty to the church thereby bestowed was
sufficient to give to the clergy that degree of importance which
ultimately culminated in making them the great lords that we find them
in the tenth century. To give an idea of the tenor of these documents,
I will, however, quote a few lines from the earliest one that has come
under my notice in Carlovingian times, namely a diploma of the year
782, issued to Geminiano II., bishop of Modena, and preserved in the
archives of that city. Here we find that: "Nullus judex publicus ad
causas audiendum, vel freda exigendum, seu mansiones aut paratas
faciendum, nec fidejussiones tollendum neque hominibus ipsius
episcopatus distringendum," etc. This is sufficient to show the
character of exemption from secular jurisdiction.[90]
The next forward step in the advance of the bishops to temporal power
was made probably about the time of Charles the Bald; though under his
two immediate predecessors, Lothaire[91] and Lewis II.,[92] we already
see indications of an extension of the quality of exemption to include
freedom from the payment of all public dues and the bearing of all
public burdens.[93] It was precisely the introduction of this element
of exemption from public burdens which marked the change in the nature
of the immunities granted from the time of Charles the Bald, down to
the period when the element of jurisdiction and real temporal power
was introduced under Guido and Berenger. Up to this time, the grounds
on which similar charters had been sought had been protection from the
oppression of the counts, and had resulted, as we have seen, in the
granting of simple charters of protection which were of no very great
significance. But now it is exemption from public burdens, etc., that
is made prominent, in addition to a complete severance from all
jurisdiction and control of the secular power of the _civitas_ in
which the bishop's see and domains are situated. That this concession
also was sought by the bishop on the plea of protection for his
dependents from oppression and exaction, does not diminish its
importance; for it is easy to see that the line which separates
recognized right of protection from recognized right of jurisdiction
is one easily effaced, and defense from the tyranny of a foreign power
can with little difficulty be transformed into domination by the
professed defender.
That this was the order of development consequent on these changes is
proved by the temporal dominion gained by the bishops in the next
century; and the steps of its growth marked by numerous immunities
granted by Charles the Bald, Karloman[94] his successor, and Charles
the Fat, the last of the Carlovingians in Italy. As a good example of
the complete development of this advance gained by the bishops, I will
mention a charter given by Charles the Fat to John, bishop of Arezzo,
in the year 879, in which he confirms to him all the property and the
rights of that see, and takes him under his protection, "sub
immunitatis suae defensione": he then goes on to explain what this
term meant, giving a full account of the extent to which a bishop's
property was exempted from the jurisdiction of the _judex publicus_,
and protected from the imposition of burdens and exactions.[95]
The next step in the growth of the episcopal power, and the most
important of all, is the progress from exemption to privilege, to
jurisdiction; and occurs after the return of the kingship of Italy to
the hands of native kings.[96] It means the full development of the
bishop into the temporal ruler, and as such belongs properly to the
history of the tenth century, and consequently is beyond the limits of
the present paper.
We have now considered individually and separately, in the course of
their development, the different elements which, when combined and
modified by the various changes described, contributed to form the
solid foundation upon which the fabric of the future independent life
of the cities was to be built. We have been dealing exclusively with
institutions, and the manner in which their growth has been
accomplished. For it is in the institutional life of a people, and in
the change and development it undergoes, that are to be found those
elements which form the basis for all future changes, whether simply
in the form of its government or in the structure of its social
system. If once a clear picture is gained of the structural parts
which form the institutional framework of any particular development,
and a truthful presentation of these forming principles is proved and
established, a detailed account of the material expression of them is
a matter of secondary importance.
I have not, in this paper, attempted to describe the actual condition
of any particular municipality, or even presented a picture which
could represent the material existence of the cities as a whole. Such
a picture would only be a necessary part of a study of institutions
when the city itself was the unit to be investigated, and not of one
whose chief object is to prove that the city as such had no
constitutional existence, but simply formed a part of another
institutional unit. When we reach a period in which the city stands
out as an object of study in itself, and when we do not have to trace
its history only by learning that of other institutions which included
and overshadowed it, then the practical life of the people within its
walls becomes of the greatest importance, even to the smallest detail
of civic law or city custom; and then, and not till then, begins what
could properly be called a study of municipal institutions.